Ontario College of Teachers v Young, 2015 ONOCT 92

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Young, 2015 ONOCT 92

Date: 2015-09-29

IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against

Ira Mark Young, a member of the Ontario College of Teachers

PANEL: Robert Gagné, Chair Sara Nouini, OCT

Thomas (Tom) Potter

BETWEEN: ) ) David Leonard,

) McCarthy Tétrault LLP, ) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Law Clerk

• and – )

) ) Jennifer Micallef,

IRA MARK YOUNG ) Ursel Phillips Fellows Hopkinson LLP,

(CERTIFICATE #216129) ) for Ira Mark Young

) Marc Spector,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: September 22, 2015

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on September 22, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated August 1, 2014 was served on Mark Ira Young (the “Member”), requesting his attendance before the Discipline Committee on August 11, 2014 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for September 22, 2015.

The Member was not in attendance at the hearing but had legal representation.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(d) he abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and or/engaged in sexual abuse of a student as defined in section 1 of the Act;

(e) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(f) he contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(g) he contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);

(h) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and

(i) he engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19).

At the hearing on September 22, 2015, College Counsel requested that the allegations of professional misconduct as defined in subsection 40(1.1) of the Act and paragraph (d), namely subsection 1(7.3) of Ontario Regulation 437/97 of the Notice of Hearing, be withdrawn. The Committee granted the request.

STATEMENT OF UNCONTESTED FACTS

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced a Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:

1. Ira Mark Young was at all material times, a member of the Ontario College of Teachers. Attached to Exhibit 2 at Tab “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

2. At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a teacher at [XXX] (the “School”) in Toronto, Ontario.

3. At all material times, the Student was a male Grade [XXX] student at the School.

4. During the 2011-2012 academic year, specifically during the fall term, the Member gave the Student a lot of help with his school work. As a result he knew that the Student was having family difficulties and was not living with his family.

5. During the 2011 [XXX] weekend, on either Sunday or Monday of that weekend, the Member called the Student on his cell phone a number of times to ask him how he was doing. Then the Member called the Student again to invite him to a BBQ at his home. Then the Member called the Student again to ask him to help him with chores and told him that he would also pay the Student $100 if he would come help him with his chores. The Student told the Member that he would think about it and would call him back. Ultimately, the Student agreed and he went to the Member’s home that same day.

6. Upon arriving at the Member’s home the Student was greeted by the Member and they engaged in small talk. The Member greeted the Student wearing shorts and holding a glass of wine. The Member then asked the Student if he would like a tour of the house. The Student said yes. The Member gave the Student a tour of his home. Afterwards they went back to the living area and they both sat on the couch where they engaged in small talk once again.

7. While sitting on the couch, the Member touched the Student’s foot with his foot. The Student did not consent to this physical contact.

8. During the course of the time the Student was at the Member’s home, the Member made a number of comments to the Student and asked the Student a number of questions that, viewed objectively, were sexual in nature and that is how they were perceived and understood by the Student. Attached to Exhibit 2 at Tab “B” are the Board’s interview notes of the Student dated April 26, 2012.

9. On or about February 23, 2012, the Member was charged with sexual exploitation with respect to his conduct with the Student. Attached to Exhibit 2 at Tab “C” is a copy of the certified Information.

10. Ultimately, on or about August 13, 2013, the Member was found guilty of assaulting the Student contrary to Section 266 of the Criminal Code (Canada). The Member received a suspended sentence and three years’ probation. Attached to Exhibit 2 at Tab “D” is a copy of the Proceedings at Plea of Guilt before the Honourable Justice M.S. Block dated August 13, 2013. Attached to Exhibit 2 at Tab “E” is a certified copy of the Probation Order dated August 13, 2013.

11. The Member’s employment was terminated by the Board on or about November 14, 2013. Attached to Exhibit 2 at Tab “F” are letters from the Board to the Member dated November 1, 2013 and November 14, 2013 respectively.

PLEA OF NO CONTEST

12. The Member hereby acknowledges that the Uncontested Facts (the “Uncontested Facts”) constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.1), 1(7.2), 1(15), 1(16), 1(17), 1(18) and 1(19).

13. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

(c) he understands that by pleading no contest to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;

(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

14. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

15. In light of the Uncontested Facts and circumstances and the plea of no contest, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel and Counsel for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that the Member committed acts of professional misconduct as alleged, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(7.2), 1(15), 1(16), 1(17), 1(18) and 1(19).

REASONS FOR DECISION

The Member did not contest the facts and exhibits referred to in paragraphs 1 to 11 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Uncontested Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(7.2), 1(15), 1(16), 1(17), 1(18) and 1(19).

Paragraphs 5, 6, 7, 8 and 10 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraph 7 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member abused a student physically, contrary to Ontario Regulation 437/97, subsection 1(7.1).

Paragraph 8 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraph 10 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member contravened a law, the contravention of which is relevant to the Member’s suitability to hold a Certificate of Qualification and Registration; and contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsections 1(16) and 1(17).

Paragraphs 5, 6, 7, 8 and 10 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to comply with the Education Act; committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional; and engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsections 1(15), 1(18) and 1(9).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), Counsel for the College and Counsel for the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:

1. direct the Registrar of the Ontario College of Teachers to immediately revoke the Certificate of Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar;

2. direct that there be publication of the finding and order of the Committee in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.

PENALTY DECISION

The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as set out above.

REASONS FOR PENALTY DECISION

The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of justice or the discipline process into disrepute. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case.

The Committee finds that the Member’s conduct warrants revocation. The Member had a number of inappropriate interactions with the Student which ultimately resulted in the Member being charged with sexual exploitation and being found guilty of assault contrary to section 266 of the Criminal Code.

The Committee finds that the Member took advantage of his position of authority to exploit a naïve and fragile Student sexually. The Student was vulnerable and was hurt psychologically and emotionally by the Member whom he trusted and had confided in. As outlined in the Board’s interview notes with the Student which were not contested by the Member (see Exhibit 2 at Tab B), the Student stated that the Member made repeated phone calls to the Student, inviting him to the Member’s home during a holiday weekend. The Student reported that the Member enticed him with money on the pretence of completing some chores.

When the Student attended the Member’s home he was greeted by the Member in shorts with a glass of wine. The Member gave the Student a tour of the house and suggested that they go to the bedroom and have some fun. The Student reported feeling threatened and fearful of assault and wanting to extricate himself from the situation. The Member continued to solicit sexual favours and offered to give the Student a blow job for $100.00. The Student felt very uncomfortable and reminded the Member that he was only [XXX] years old. The Member responded “Yeah, it’s better”. After an extended period of discomfort, the Student was able to remove himself from the Member’s home, avoiding any further objectionable interaction with the Member.

By his conduct, the Member has abused his position of trust and authority, has brought the profession into disrepute and must face the consequences for his grievous misconduct. Revocation of his Certificate of Qualification and Registration is the most severe penalty available to the Committee, is justified and is in the public interest.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. Publication with the name of the Member identifies to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. Publication with name serves as a general deterrent by reminding the profession that teachers occupy a place of trust and that when this trust is violated it attacks the integrity of the entire profession and as such cannot be tolerated. Moreover, publishing the Member’s name ensures the transparency of the discipline process and reassures the public that the College acts decisively and does not shield its members when matters of this nature are brought to its attention.

The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.

Dated: September 29, 2015

______________________________ Robert Gagné,

Chair, Discipline Panel ______________________________ Sara Nouini, OCT Member, Discipline Panel

Thomas (Tom) Potter,

Member, Discipline Panel